Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?

                                                       Calendar No. 349
113th Congress  }                                            {   Report
  2d Session    }            SENATE                          {  113-215

=======================================================================
 
TO AUTHORIZE THE PECHANGA BAND OF LUISENO MISSION INDIANS WATER RIGHTS 
                   SETTLEMENT, AND FOR OTHER PURPOSES 

                                _______
                                

                 July 22, 2014.--Ordered to be printed

                                _______
                                

           Mr. Tester, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1219]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1219) to authorize the Pechanga Band of Luiseno 
Mission Indians Water Rights Settlement, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment and recommends that the bill, as amended, do 
pass.

                                PURPOSE

    The purpose of S. 1219 is to provide for the Pechanga Bands 
of Luiseno Mission Indians' (the Band) water rights, and 
provide funding for infrastructure development to allow the 
Band to put their water rights to actual use.

                               BACKGROUND

    The Pechanga Indian Reservation was originally established 
in 1882 by an Executive Order of President Chester A. Arthur. 
The Reservation is currently comprised of 6,724 acres located 
near the city of Temecula, northeast of San Diego, California. 
Approximately 500 of the Band's 1,600 members reside on the 
Reservation.
    The Reservation lies within the Santa Margarita River 
Watershed, which also affects two other Indian tribes, as well 
as the Rancho California Water District and the Eastern 
Municipal Water District. The Band currently uses water on the 
Reservation for commercial, agricultural, domestic and 
municipal purposes, and expects demand to increase in the 
coming years.

Pechanga Water Rights

    The settlement of the Band's water rights stems from 
litigation, United States v. Fallbrook, which the United States 
initiated in 1951 over water rights in the Santa Margarita 
River Watershed. The Fallbrook litigation eventually expanded 
to include all water users within the Santa Margarita 
Watershed, including three Indian tribes--the Pechanga Band of 
Luiseno Indians, the Ramona Band of Cahuilla Indians, and the 
Cahuilla Band of Indians.
    The United States, as trustee, represented all three Tribes 
before the Fallbrook Court. At trial, the United States made a 
factual presentation to the Court based on a report (prepared 
by the United States in 1958) that demonstrated the United 
States' formal position on the practicably irrigable acres 
claim for reserved water rights for the Pechanga Reservation, 
which the United States asserted was 4,994 acre-feet per year.
    In a series of Interlocutory Judgments that were eventually 
wrapped into the Court's Modified Final Judgment and Decree, 
the Court examined and established water rights for various 
water users involved in the case. In Interlocutory Judgment 41, 
the Court concluded that each of the three Tribes has a 
recognized federally reserved water right without specifying 
the amount of each of the Tribe's water rights.
    As to the Pechanga Reservation, the Court accepted the 
United States' formal position of practicably irrigable acres 
on the Pechanga Reservation and set the federally reserved 
water right at the amount of 4,994 acre-feet per year, but only 
on a ``prima facie'' basis. The ``prima facie'' nature of the 
findings meant that, though they are binding until successfully 
challenged, the findings were not final.
    Final quantified rights were never established thereafter 
for the Pechanga Band or any of the other tribes in the 
Fallbrook case. As a result, all three Tribes have ``decreed,'' 
but ``unquantified,'' federally reserved water rights.
    In 1974, the Pechanga Band filed a motion with the 
Fallbrook Court to intervene as a plaintiff-intervener and a 
party to the proceeding on its own behalf. In 1975 the Court 
granted the Band's Motion and the Band filed a complaint to 
enjoin certain defendants from using more than their respective 
entitlements under the Fallbrook Decree. The Band has remained 
a party to the Fallbrook proceedings ever since. The Band has 
not yet filed a motion to finally quantify its federally 
reserved water rights, but is now facing pressure to do so due 
to the growing scarcity of water supplies in the region.

Pechanga Water Rights Settlement

    Until recently, the Pechanga Band sought to avoid 
litigation and instead worked with those entities around the 
Band to develop mutual private agreements for sharing the 
limited water resources in the Wolf Valley Basin. As a result, 
in 2006, the Band and the Rancho California Water District 
(RCWD) entered into a Groundwater Management Agreement, and in 
2007, the Band and Eastern Municipal Water District entered 
into a Recycled Water Agreement. Neither of these agreements, 
however, addressed the Band's water rights in the Santa 
Margarita River Watershed, or settled the Band's claims related 
to the Fallbrook Decree or its claims against the United States 
related to water and development of water resources.
    In 2006 and continuing throughout 2007, the other two 
tribes in the Santa Margarita River Watershed, the Ramona Band 
of Cahuilla Indians and the Cahuilla Band of Indians sought to 
intervene in the Fallbrook case to, among other things, 
quantify their respective water rights to the Santa Margarita 
River Watershed. These efforts forced the Pechanga Band to 
become more actively engaged in the Fallbrook proceedings in 
order to protect its own claims to water or risk being injured 
by the actions of the other two Tribes.
    In addition to participating as a litigant in the 
proceedings initiated by the Ramona and Cahuilla, the Pechanga 
Band began its efforts to reach a settlement of its claims to 
water and claims for injuries to water rights relating to the 
Santa Margarita River Watershed. On March 13, 2008, the Band 
requested that the Secretary of the Interior seek settlement of 
the water rights claims involving the Band, the United States, 
and non-Federal third parties through the formation of a 
Federal Negotiation Team under the Criteria and Procedures for 
Participation of the Federal Government in Negotiations for the 
Settlement of Indian Water Rights Claims. The Secretary agreed 
to form a Federal Negotiation Team on August 1, 2008.
    Since formation of the Federal Negotiation Team, the 
Pechanga Band has been working closely with all of the parties 
to negotiate the terms of the Pechanga Settlement Agreement and 
to resolve its claims against the United States in connection 
with the development and protection of the Band's water rights. 
The Band's settlement is a broad settlement agreement with the 
United States and the RCWD. The Pechanga Settlement Agreement 
would be confirmed, authorized and ratified by S. 1219.
    S. 1219 would provide final closure for the Band regarding 
its water rights, which have been at issue since the United 
States first initiated litigation over the Band's water rights 
in 1951. The bill would recognize the Band's right of up to 
4,994 acre feet of water per year and ratify the Pechanga 
Settlement Agreement that would be entered into by the Band, 
the United States, and several California state water 
districts. In return for recognition of the water rights 
contained in the bill, many of the Band's legal claims against 
the United States would be waived or released.
    In addition to the quantified water right, S. 1219 would 
provide approximately $28.5 million in federal funding to 
improve infrastructure to allow the Band to fully utilize its 
water rights. The bill also ratifies various agreements that 
have already been completed or will be completed between the 
Band and the various California water districts. These 
agreements detail how the Band would receive its water from the 
various California water districts, particularly in instances 
where there is insufficient supply for all users on the system.

                      SECTION-BY-SECTION ANALYSIS

Section 1--Short title; table of contents

    This section sets forth the table of contents and states 
this Act may be cited as the ``Pechanga Band of Luiseno Mission 
Indians Water Rights Settlement Act''.

Section 2--Purposes

    Section 2 states the purposes of the Act as achieving a 
fair, equitable and final settlement of water rights and 
certain claims in the Santa Margarita Watershed; achieving a 
final settlement of claims by the Band and allottees against 
the United States; approving the Pechanga Settlement Agreement 
to be entered into by the Band, the Rancho California Water 
District, and the United States; authorizing the Secretary of 
the Interior to implement the Settlement Agreement; and 
authorizing the funds necessary to implement the Settlement 
Agreement and the Act.

Section 3--Definitions

    Section 3 defines key terms used throughout the Act.

Section 4--Approval of the Pechanga Settlement Agreement

    Section 4 authorizes, ratifies and confirms the Pechanga 
Settlement Agreement and authorizes and directs the Secretary 
of the Interior to carry out the terms of the Settlement 
Agreement and the Act. Section 4(c) designates the Bureau of 
Reclamation as the lead agency for environmental compliance 
during implementation of the Settlement Agreement and the Act.

Section 5--Tribal water right

    Section 5 confirms the Band's water right of up to 4,994 
acre-feet per year and mandates the water right be held in 
trust by the United States. Section 5 also describes the intent 
of Congress to protect any water rights held by individual 
allottees. Section 5 requires the Band to enact a Water Code 
and defines the authority of the Band to use its water.

Section 6--Satisfaction of claims

    Section 6 states that the benefits provided to the Band and 
allottees under the Settlement Agreement and Act fully satisfy 
the claims that are waived in Section 7 of the Act.

Section 7--Waiver of claims

    Section 7 describes the claims that are waived by the Band, 
allottees, and the United States. Section 7 also lists a small 
number of claims that are not waived, such as enforceability of 
the Settlement Agreement, and other claims not subject to the 
Settlement Agreement or the Act. Finally, Section 7 nullifies 
the waivers if the Act is not fully appropriated by 2030.

Section 8--Water facilities

    Section 8 describes the water infrastructure that is 
provided for in the Settlement Agreement, including a storage 
pond to hold recycled water and infrastructure to increase 
water delivery capacity both permanently and in the interim. 
The Bureau of Reclamation is designated the lead agency for 
these projects.

Section 9--Pechanga Settlement Fund

    Section 9 directs the Secretary of the Interior to manage 
and invest the Pechanga Settlement Fund, and directs how the 
Fund should be distributed among several accounts, and under 
what conditions funds can be withdrawn and expended.

Section 10--Miscellaneous provisions

    Section 10 discusses the limited waiver of sovereign 
immunity by the United States and states that nothing in the 
Act affects any other Indian tribe, band or community other 
than the Pechanga Band. Section 10 also states that the United 
States will not submit any claim to reimburse costs of the Act 
on any Indian-owned lands within the Pechanga Reservation.

Section 11--Authorization of appropriations

    Section 11 authorizes a total of $28,500,027 to be 
appropriated and deposited across four accounts within the 
Pechanga Settlement Fund.

Section 12--Repeal on failure of enforceability date

    Section 12 states that the Act will be repealed on May 1, 
2021, if the Secretary does not publish a statement of findings 
in the Federal Register by April 30, 2021, setting forth that: 
(1) the Settlement Agreement has been approved by the United 
States District Court for the Southern California District; (2) 
all amounts authorized under the Act have been deposited into 
the Fund; (3) all waivers have been executed; (4) the Extension 
of Service Area Agreement has been approved and is effective; 
and (5) the Water Delivery Agreement has been approved and is 
effective.

Section 13--Antideficiency

    Section 13 states that the United States will not be liable 
for any failure to carry out the Act if adequate appropriations 
are not provided.

                          LEGISLATIVE HISTORY

    S. 1219 was introduced on June 25, 2013, by Senator Barbara 
Boxer (D-CA) and Senator Dianne Feinstein (D-CA). The bill was 
referred to the Committee on Indian Affairs. On September 10, 
2013, the Committee held a legislative hearing on the bill. On 
April 2, 2014, the Committee met to consider the bill. One 
substitute amendment was offered, and the bill, as amended, was 
adopted and ordered favorably reported to the Senate by voice 
vote.

                        SUMMARY OF THE AMENDMENT

    Senator Jon Tester (D-MT) offered an amendment in the 
nature of a substitute. The amendment primarily addressed 
concerns expressed by the Department of the Interior and 
reflects the recent agreements made between the Pechanga Band 
and the Department. While the majority of the amendments are 
technical in nature, the substantive changes primarily reflect 
agreement on revised waiver of claims language that is 
consistent with other past tribal water settlements, changes in 
the overall cost of the bill, and the treatment of individual 
allottees' rights vis-a-vis the Band's water right. The 
amendment decreases the amount of federal obligations to $28.5 
million, which is an $11.5 million decrease from the bill as 
introduced.

                   COST AND BUDGETARY CONSIDERATIONS

    The following cost estimate, as provided by the 
Congressional Budget Office, dated May 30, 2014, was prepared 
for S. 1219:
    Enclosure.

S. 1219--Pechanga Band of Luiseno Mission Indians Water Rights 
        Settlement Act

    Summary: S. 1219 would ratify the Pechanga Settlement 
Agreement among the Pechanga Band of Luiseno Mission Indians in 
California, the federal government, and local water districts. 
The legislation also would establish the Pechanga Settlement 
Fund to pay, subject to the availability of appropriated funds, 
for the development and maintenance of water infrastructure for 
the tribe. Pay-as-you-go procedures do not apply to this 
legislation because it would not affect direct spending or 
revenues.
    S. 1219 contains an intergovernmental mandate as defined in 
the Unfunded Mandates Reform Act (UMRA) because it would 
require the tribe to enact a tribal water code. CBO estimates 
that the cost of the mandate would be small and well below the 
threshold established in UMRA for intergovernmental mandates 
($76 million in 2014, adjusted annually for inflation).
    S. 1219 contains no private-sector mandates as defined in 
UMRA.
    Estimated cost to the Federal Government: The estimated 
budgetary effect of S. 1219 is shown in the following table. 
The costs of this legislation fall within budget function 450 
(community and regional development).

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2015     2016     2017     2018     2019   2015-2019
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level...........................       33        0        0        0        0        33
Estimated Outlays.......................................       33        0        0        0        0        33
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that S. 
1219 will be enacted near the end of 2014. The legislation 
would ratify the Pechanga Settlement Agreement among the tribe, 
the federal government, and the Rancho California and Eastern 
Municipal water districts in Riverside County, California.
    S. 1219 would establish and authorize the deposit of funds 
into the Pechanga Settlement Fund to construct a storage pond, 
build interim and permanent capacity for imported water 
delivery, and pay local water district connection fees. CBO 
estimates that the legislation would authorize the deposit of 
about $33 million to that fund in 2015, subject to the 
availability of appropriated funds.
    Payments to certain tribal trust funds that are held and 
managed in a fiduciary capacity by the federal government on 
behalf of Indian tribes are treated as payments to a nonfederal 
entity. As a result, CBO expects that the entire amount 
deposited to this trust fund would be recorded as budget 
authority and outlays at the time of the deposit. The Secretary 
of the Interior would be required to invest the funds in 
government securities until those funds are expended by the 
tribe.
    Pay-As-You-Go considerations: None.
    Estimated impact on state, local, and tribal governments: 
S. 1219 would require the tribe to enact water policies that 
would govern the use of tribal water rights as detailed in the 
agreement. That requirement would be an intergovernmental 
mandate as defined in UMRA because it would place a statutory 
requirement on the tribe that is separate from provisions of 
the agreement. CBO estimates that the cost of the mandate would 
be small and well below the threshold established in UMRA for 
intergovernmental mandates ($76 million in 2014, adjusted 
annually for inflation).
    Other provisions of the bill would benefit the tribe. Any 
costs to the tribe from those provisions would be incurred 
voluntarily as a result of entering into the settlement 
agreement.
    Estimated impact on the private sector: S. 1219 contains no 
private-sector mandates as defined in UMRA.
    Estimate prepared by: Federal Costs: Martin von Gnechten; 
Impact on State, Local, and Tribal Governments: Melissa 
Merrell; Impact on the Private Sector: Marin Burnett.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 1219 will 
have a minimal impact on regulatory or paperwork requirements.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding S. 1219.

                        CHANGES IN EXISTING LAW

    In accordance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that the 
enactment of S. 1219 will not make any changes in existing law.